NZIMENYA v. TERIMBERE SACCO BWIRA

# NZIMENYA v. TERIMBERE SACCO BWIRA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-02-28 - Case/document no.: RSOCA0017BIS HC - Collection: High Court

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NZIMENYA v. TERIMBERE SACCO BWIRA [Rwanda HIGH COURT MUSANZE CHAMBER – RSOCA0017Bis HC (KAYISIRE, J.) February 28, 2014] Law regulating labour – Labour disputes settlement – Conciliation to settle a dispute shall be taken by both parties before labour inspector, that conciliation shall be mandatory – Law n◦13/2009 of 27/05/2009 regulating labor in Rwanda, article 143. Labour procedural – Damages for being dragged into unnecessary lawsuit – The requester of damages for being dragged into unnecessary lawsuit must demonstrate that the one who filed a case against him/her had the only purpose to drag him into lawsuit. Fact: Nzimenya filed a case at Intermediate Court of Rubavu against Terimbere SACCO Bwira because it dismissed him unlawful. That court held that he was not unlawful dismissed. He was not satisfied with the ruling of the case and he appealed at the High Court Musanze chamber praying that the appealed judgment should be overturned because on the first instance the Court held that he was not lawful dismissed due to the committed faults while it is not true since he did not commit a gross negligence and he was not notified of his misconduct within 48 hours. He is praying to be given what are provided by the law including: the amount of not be given the work certificate, accompanying allowance, those of being dismissed, those of he was reduced on his salary since 04/2011 up to 11/2012, that he was not paid of the leave compensation, the Counsel fees on the first and appeal instance and the transport fees. abandoned his employment and there are several letters requesting him to come back on duty, he further argued that even the labor inspector requested him to come back on duty which he refused and filed a claim that he was dismissed yet it is not the case. Held : 1. After Nzimenya submitting his claim before the labor inspection, there was the conciliation to remove the decision which was taken for him, Nzimenya has to be back at his duty because that conciliation is mandatory he was not dismissed at work. 2. The letter of 06 February 2013 demonstrating what are including on what should be implemented under the decision made by the inspection, it is the issue of 653,900Frw which they asked him to pay, should be reimburse them, but he did not demonstrating that he is requesting to be reinstated on work therefore it will not be considered as the evidence of being reinstated. 3. Nzimenya should not be given the amount of not being given the employment certificate, compensation, for being dismissed, being reduced on his salary, leave, counsel fees and transport because his appeal has no merit and also cooperative should not be awarded the moral damages for being dragged into unnecessary lawsuit, because Nzimenya has the right to file a claim , nothing which demonstrating that he filed a claim with the purpose to dragged it into unnecessary lawsuit but it must be awarded the procedural fees and the counsel fees. Appeal has no merit.

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With the Court to the appellant . Statutes and statutory instruments referred to: Law n◦13/2009 of 27/05/2009 regulating labor in Rwanda, article 143. No case referred to. Judgment I. BACKGROUND OF THE CASE [1] Nzimenya Théogène appealed against the judgment R.Soc 0002/13/TGI/RBV rendered on 30/04/2013 by the Intermediate Court of Rubavu, where he brought a case against Cooperative TERIMBERE SACCO BWIRA, claiming that he was unfairly dismissed. In the ruling of that case, the Court held that Nzimenya was not unfairly dismissed. Me Nsengiyumva Straton, the counsel of Nzimenya explained the grounds of appeal arguing that Nzimenya was not notified of his misconduct within 48 hours, he was not given the notice period, the work certificate, the accompanying allowance, that he was not given the leave compensation of 2010 and 2011, moreover he was not paid the final dues, he requests that the judgment appealed can be overturned in its entirety, so Nzimenya can get what the law grants him 900,000 because he was not given the work certificate, 150,000 Rwf of accompanying allowance, 900,000 Rwf of dismissal, 294,000 Rwf deducted on his salary from April 2011 up to November 2012, 300,000 Rwf of leave compensation , 600,000 Rwf of the counsel’s honorary who represented him from the first instance up to the appellate level and 100,000 Rwf of transport. [2] Counsel Nsabimana Jean Damascène, the counsel of Cooperative TERIMBERE SACCO BWIRA argued that Nzimenya abandoned his employment and there are several letters requesting him to come back on duty, he further argued that even the labor inspector requested him to come back on duty which he refused and filed a claim that he was dismissed yet it is not the case, he requests that the appeal of Nzimenya should not be considered and he award Cooperative TERIMBERE SACCO BWIRA 3,000,000 Rwf of damages due to the abuse of procedure, 600,000 Rwf of proceedings fees and 500,000 Rwf of the counsel’s honorary. [3] The issues to be examined are to determine whether the ground of appeal of Nzimenya is founded whether litigants can be awarded the amount they claim. II.ANALYSIS OF LEGAL ISSUES With regard to determining whether the ground of appeal of Nzimenya Théogène is founded. [4] In the ruling at the first instance, the court held that Nzimenya who brought the case against Cooperative TERIMBERE SACCO BWIRA for having been unfairly dismissed, he was not unfairly dismissed because he committed gross misconducts,

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therefore it was not founded. Nzimenya was not contended with that ruling and appealed. ME Nsengiyumva Straton his counsel explained that he was unfairly dismissed. With regard to determining whether Nzimenya Theogene was unfairly dismissed, as he alleges. [5] Counsel Nsengiyumva Straton, counsel of Nzimenya argued that at the first instance, the court held that he was dismissed in accordance with the law due to his misconduct, that this is not true because he did not any commit any gross misconduct, that he was not notified of his misconduct with 48 hours. Me Nsabimana Jean Damascène, the counsel of Coopérative TERIMBERE SACCO BWIRA, argued that Nzimenya abandoned his employment and that there are several letters requesting him to come back on duty, that even the labor inspector requested him to come back on duty which he refused and decided to file a claim that he was dismissed yet it was not the case. [6] The Court finds that in his argument that Nzimenya was unfairly dismissed, ME Nsengiyumva Starton his counsel shows that Nzimenya was suspended and later on the inspector of labor ordered that he come back on duty but this was not done and filed the claim to the court immediately. Nzimenya argued that he did not receive the dismissal letter, but he received a warning letter, he further asserts that he received the letter requesting him to come back on duty after filing the claim. Me Nsabimana the counsel of Cooperative TERIMBERE SACCO BWIRA argued that the Cooperative has never dismissed Nzimenya and the labor requested that he come back on duty and he decided to seize the court, claiming that he was dismissed yet he requested him to come back on duty, because he abandoned his employment, that he was not willing to bargain with his employer, that SACCO could not find him, that moreover does not prove that he came back on duty, so that SACCO refused that. [7] The Court finds that the letter suspending Nzimenya as an employee of Cooperative TERIMBERE SACCO BWIRA, was written on 21/11/2012 by the President of the Administration council. Thereafter Nzimeya took his claim before the labor inspection in Ngororero district asserting that his suspension was not justified. In the decision of 18/12/2912 it held that the decision taken against Nzimenya be removed and that affidavit was signed by both Nzimenya and the representative of Cooperative TERIMBERE SACCO BWIRA. The court finds that after that agreement before the inspector of labor Nzimenya has to come back on duty, because that conciliation became a law pursuant to article 143 paragraph 5 of the law n◦13/2009 of 27/05/2009 regulating labor in Rwanda. [8] Me NSENGIYUMVA Straton the counsel of Nzimenya asserted that on 06/02/2013 NZIMENYA wrote a letter to the Cooperative requesting the enforcement of the decision taken in the labor inspection, and after it was not enforced that is when he decided to resort to courts, whereas Me Nsabimana the counsel of Cooperative TERIMBERE SACCO BWIRA, argued that there are letters requesting Nzimenya to come back on duty, that he abandoned his employment, that SACCO could not find him and that he does not prove that he came back on duty so that SACCO refused that. The court finds that the letter of 06/02/2013, though there is no evidence that SACCO received it, it shows in its content that what can be enforced among the decisions held in the labor inspection, is the issue of 653,900 Rwf he was requested to pay, that he wants the cooperative to call for auditors, so they can refund him that amount in case it may

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found, Nzimenya it is obvious in that letter that he did never request to come back on duty and this should not considered as an evidence that he requested to come back on duty really. [9] The Court finds that with regard to letters, Cooperative addressed to NZIMENYA requesting him to come back on duty, include the letter of 24/12/2012, and there is no evidence that Nzimenya received that letter, there is also a letter of 11/03/2013 warning Nzimenya and notifying him that in case he will continue to be absent on duty until 01/04/2013, he will be considered as an employee who abandoned his employment, that the Cooperative will take the decision in accordance with the law, that letter was handed to the wife of Nzimenya on 22/03/2013 and Nzimenya admits that he received it though after filing the claim that the Cooperative dismissed him unfairly, he filed the claim on 12/02/2013, the court finds that that letter proves that the cooperative did not dismiss Nzimenya as he alleges but the addressed letters requesting him to come back on duty. [10] Basing on what explained above, under paragraph 7,8 and 9, the Court finds that there is no evidence that proves that Nzimenya requested to come back on duty , and be denied of this, as he argues, moreover the court finds that the Cooperative did not dismiss Nzimenya, because there is no evidence of dismissal he produced before the court, therefore, the court finds he was not unfairly dismissed and he was not dismissed as such, its ground of appeal is therefore not founded and the ruling of the judgment appealed against about the ruling that he was dismissed due to a gross misconduct. With regard to whether litigants can be awarded the amount they claim [11] Counsel Nsengiyumava Straton, the counsel of Nzimenya requested that he be awarded 900,000 Rwf because he was not given the work certificate, 150,000 Rwf of accompanying allowance, 900,000 Rwf of dismissal, 294,000 Rwf deducted on his salary from April 2011 up to November 2012, 300,000 Rwf of leave compensation, 600,000 Rwf of the counsel’s honorary who represented him from the first instance up to the appellate level and 100,000 Rwf of transport. The court finds that he should not be awarded that amount because his appeal is not founded as explained above. [12] Me Nsabimana Jean Damascene, the counsel of the Cooperative TERIMBERE SACCO BWIRA requested that Nzimenya pay to the Cooperative 3,000,000 Rwf of damages due to the abuse of procedure, 600,000 Rwf of proceedings fees and 500,000 Rwf of the counsel’s honorary. The court finds with regard to damages due to abuse of procedure, the cooperative should not be awarded this amount because the court finds that in filing the claim Nzimenya has his way of perceiving his claim and there is no evidence that he intended to abuse the procedure against the cooperative, and as for the counsel’s honorary claimed by the cooperative should be awarded by the court in its discretion because the amount it claims is excessive yet there is no evidence to prove that, therefore, Nzimenya has to pay it 200,000 Rwf of the proceedings fees and counsel’s honorary. III. DECISION OF THE COURT [13] It holds that the appeal of Nzimenya Theogene has no merit

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[14] It holds that the ruling of the judgment R.Soc 0002/13/TGI/RBV rendered on 30/04/2013 by the Intermediate Court of Rubavu, is changed only on the ruling that NZIMENYA Theogene was diemissed due the gross misconduct. [15] It orders Nzimenya Theogene to pay the Cooperative TERIMBERE SACCO BWIRA, 200,000 Rwf of proceedings fee and counsel’s honorary [16] It orders that Nzimenya Theogene to pay the court fee equal to 14,950 Rw